Trump asks US Supreme Court to intervene in deportations to third countries

WASHINGTON - President Donald Trump’s administration asked the US Supreme Court on May 27 to intervene in its effort to rapidly deport migrants to countries other than their own without the opportunity to raise claims that they fear being persecuted, tortured or killed there.

The Justice Department requested that the justices lift Boston-based US District Judge Brian Murphy’s nationwide injunction requiring that migrants be given the chance to seek legal relief from deportation before they are sent to so-called “third countries”, while litigation continues in the case. 

The administration said in its filing the third-country process is critical to removing migrants who commit crimes because their countries of origin are often unwilling to take them back.

“As a result, criminal aliens are often allowed to stay in the United States for years on end, victimising law-abiding Americans in the meantime,” it told the justices. The filing represented the administration’s latest trip to the nation’s highest judicial body as it seeks a freer hand to pursue Mr Trump’s crackdown on immigration and contest lower court decisions that have impeded the Republican president’s policies.

The administration has said Judge Murphy’s injunction is preventing potentially thousands of pending deportations.

The injunction “disrupts sensitive diplomatic, foreign policy and national security efforts”, it said in May 27’s filing.

The Department of Homeland Security (DHS) moved in February to determine if people granted protections against being removed to their home countries could be detained again and sent to a third country. Immigrant rights groups then mounted a class action lawsuit on behalf of a group of migrants seeking to prevent rapid deportation to newly identified third countries without notice and a chance to assert the harms they could face.

In March, the administration issued guidance providing that if a third country has given credible diplomatic assurance that it will not persecute or torture migrants, individuals may be deported there “without the need for further procedures”.

Without such assurance, if the migrant expresses fear of removal to that country, US authorities would assess the likelihood of persecution or torture, possibly referring the person to an immigration court, according to the guidance. 

Judge Murphy issued a preliminary injunction in April, finding the administration’s policy of “executing third-country removals without providing notice and a meaningful opportunity to present fear-based claims” likely violates due process protections under the US Constitution’s Fifth Amendment. Due process protections generally require the government to provide notice and an opportunity for a hearing before taking certain adverse actions.

He said that the Supreme Court, Congress, “common sense” and “basic decency” all require migrants to be given adequate due process. The Boston-based 1st US Circuit Court of Appeals on May 16 declined to put his decision on hold. 

As with previous cases challenging Mr Trump’s far-reaching executive actions and initiatives, the case raised further questions over whether the administration is defying court orders.

Judge Murphy on May 21 ruled that the administration had violated his court order by attempting to deport migrants to South Sudan.

Ms Trina Realmuto, one of the lawyers for the plaintiffs with the National Immigration Litigation Alliance, said on May 27 after the administration’s filing: “The government has continued to flout the district court’s order. Behind the government’s rhetoric is not an emergency, but the law. The law requires due process.”

The injunction requires due process before deporting migrants to third countries including those “where the State Department has documented systemic human rights abuses and violence against foreign nationals”, Ms Realmuto said.

Intolerable choice

The migrants, now being held at a military base in Djibouti, all had committed “heinous crimes” in the US, the administration told the Supreme Court, including murder, arson and armed robbery. “As a result, the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil – where each day of their continued confinement risks grave harm to American foreign policy – or bringing these convicted criminals back to America,” the Justice Department said.

Judge Murphy has also ordered that non-citizens be given at least 10 days to raise a claim that they fear for their safety.

In another action, the judge modified his injunction to guard against the possibility of the DHS ceding control of migrants to other agencies to carry out rapid deportations, after the administration took the position that the Department of Defence was not covered by his orders. REUTERS